*1 not re- the record does Similarly, here district court would
flect whether the had it de- a 136-month sentence
imposed range month for from the 121-151
parted 32, instead of the 235- level of
an offense of 38. range for an offense level
293-month of the midpoint is the 136 months
While cannot assume the dis- range,
correct a vari- granted would not have
trict court range correct because of
ance from the of the fraudulent con-
speculative nature Therefore,
tract, any for other reason. sentencing guidelines enhancement er- harmless, and we remand
rors were not court for resentenc-
the case to the district
ing.
CONCLUSION reasons, we AFFIRM foregoing
For the sentence, VACATE resentencing.
REMAND for America,
UNITED STATES
Plaintiff-Appellee RESENDIZ-MORENO,
Leodegario
Defendant-Appellant.
No. 11-51139. of Appeals,
United States Court
Fifth Circuit.
Jan.
was require showing convicted does not we VACATE the sen- resentencing. tence and REMAND for I. 2011,
In pleaded Resendiz-Moreno guilty charge illegal reentry to one into the United States. Resendiz-Moreno’s sentencing range subsequently was calcu- lated on the basis of a total offense level of 21. This offense level included a 16-level adjustment upward upon based judge’s determination that pri- Resendiz-Moreno’s Georgia conviction for first-degree cru- elty to children constituted a crime of vio- lence.
II. We review the district court’s inter pretation of Sentencing Guidelines de Bonilla, novo. United States v. Jr., Joseph Gay, Asya Blatt, H. Mara 647, Cir.2008). Attorneys, Attorney’s Assistant U.S. U.S. Office, Antonio, TX, San for Plaintiff-Ap- III. pellee. only Resendiz-Moreno’s argument on Maldonado, Javier N. Law Office of Jav- appeal is that the district court erred in its Maldonado, P.C., Antonio, TX, ier N. San prior determination that his cruelty to chil- for Defendant-Appellant. dren conviction was a crime of violence. Sentencing
United States
Guidelines
2L1.2(b)(l)(A)(ii)
§
permits a
up
16-level
adjustment
ward
to a defendant’s offense
DAVIS, JONES,
SMITH,
Before
level
previously
“[i]f
defendant
Judges.
Circuit
deported ... after a conviction
felony
for a
that is ... a crime of violence.” “Crimes
DAVIS,
W. EUGENE
Judge:
Circuit
of violence” include certain enumerated of
Defendant Leodegario Resendiz-More-
fenses as well as offenses that have “as an
(“Resendiz-Moreno”)
no
appeals his sen-
element the
attempted
or threat
tence imposed by the district court after
against
ened use of
force
per
pleading guilty
illegal reentry
into the
son of another.” United States v. Calder
United States. He contends the district
on-Pena,
(5th Cir.2004)
court erroneously enhanced his sentence
(en banc) (quoting
§ 2L1.2
U.S.S.G.
cmt. n.
based on his conviction
Georgia
under
1(B)(ii)).
16-5-70(b),
Code
which the court con-
cluded was a crime of violence. Because
To determine
whether
defen
the statute under which
qualifies
Resendiz-Moreno
dant’s
conviction
as a crime
not involve
of other act of omission
does
violence,
to the elements
“look[]
Indeed,
force.1
Geor-
the use of
at
“The elements
Id.
the crime.”
repeatedly recognized
such
gia
the statute
courts
course come from
an offense of
*3
case,
very
of
cruelty
forms of
as violations
this
In this
the crime
Id.
of conviction.”
See,
State,
e.g.,
v.
300
statute.
Garrett
which Resendiz-Moreno’s
upon
of violence
(2009)
355,
391, 685 S.E.2d
359
predicated Ga.App.
sentencing enhancement was
(“[T]he
supports
cru-
evidence
first-degree
[defendant’s]
of
Georgia
the
crime
was
cruelty to chil-
degree
of
conviction of first
Georgia
The
statute
elty to children.
to
medical atten-
commits dren for failure
seek
“Any person
provides,
conviction
State,
tion.”);
490,
.
Ga.App.
v.
293
in the
Freeman
cruelty
of
to children
the offense
(2008) (“The
652,
maliciously
654
failure to
person
667 S.E.2d
degree when such
first
a
proper medical attention for
age
procure
the
of 18 cruel or
a child under
causes
proof
injuries
child’s
constitutes sufficient
pain.”
or mental
Ga.
physical
excessive
children.”).
16—5—70(b)(2010).
cruelty
§
As inter-
to
Ann.
Code
courts,
the crime
preted by Georgia
government
The
nonetheless as
cruelty
requires
thus
first-degree child
disjunctive
§
a
stat
serts that
16-5-70 is
(1) the
following
the
elements:
proof of
to the indict
permits
ute which
reference
(2)
child,
the child suffers
minority of the
ment
to determine whether
the statute
(3)
pain,
pain
the
was
physical
mental or
in
in
actually
way
violated
a
which
(4)
excessive,
the defendant
cruel or
force.2
physical
volved the use of
Under
(5)
Brewton
pain,
the
and malice.
caused
approach” em
categorical
the “modified
State,
160,
668,
465
669
266 Ga.
S.E.2d
Court, if
by this
a statute defines
ployed
(1996).
disjunctive ele
multiple crimes or contains
ments,
inquiry
charging
a limited
into the
support
“If
facts would
a
any set of
to determine
compo
permitted
that
documents
is
proof of
conviction without
statutory variant of the crime was
nent,
decidedly
most
which
component
then the
Keisler,
Perez-Munoz v.
committed. See
element—implicit
explicit—of
an
or
is not
(5th Cir.2007).
357,
The
Vargas-Du
507 F.3d
the crime.” United States v.
16-5-70(b)
(5th Cir.2004) (en
§
that
is
ran,
598,
government contends
banc).
may
by
case,
disjunctive because it
be violated
language
In the instant
pain.
causing
pain or mental
at
makes clear
“the
the statute
§
However,
to read
16—5—
even if we were
use of
tempted
or threatened
70(b)
sense, person
a
disjunctive
as
necessary
commit the
is not
force”
inflicting
by
the statute
commit
can still violate
person
a
can
Specifically,
crime.
pain without the use
maliciously physical or mental
cruelty
child
first-degree
16-5-70(b)
§
does
force. Because
by
a child
de
pain upon
inflict excessive
offense—disjunctively or
not
an
by
or
some
describe
the child of medicine
priving
unlawfully
... MALICIOUSLY
Andino-Ortega,
did
dant]
United States v.
See
RESENDIZ,
305,
Cir.2010)
(finding that Texas
A CHILD UN-
CAUSE JULIAN
endangerment
could be violated
child
statute
PHYSICAL
THE AGE OF
CRUEL
DER
by putting
physical force
"without
the use of
BY PLACING THE
AND MENTAL PAIN
harmful
substance in
poison or another
FACE OF SAID CHILD
HAND OVER THE
drink.”).
food or
child's
SQUEEZING,
THE
THEN STRIKING
AND
HAND
THE ACCUSED'S
CHILD WITH
indicates
indictment
2. Resendiz-Moreno’s
MARKS,
AND A CUT
BRUISING
CAUSING
the use of
was due to
that his conviction
TO THE FACIAL AREA.”
qualify
physical force which would otherwise
"[Defen-
as a crime of violence:
his conduct
16-5-70(b)
requires
phys-
otherwise—which
is indistin-
Ga.Code Ann.
guishable in
inquiring
respect
ical
there is no basis for
from the Texas
statute we considered in Calderon-Pena.
charging
into the
documents.
Andino-Ortega,
See
3. The Texas
provided,
statute of conviction
admittedly
"A 4.
complete
Our caselaw is
not in
person
harmony
point.
intentionally,
previously
commits an
on this
We
offense if he
unpublished opinion
issued an
knowingly,
that can be
recklessly,
negli-
or with criminal
permitting
read as
omission,
charging
reference to the
gence, by
engages
act or
in conduct
document in other circumstances. See United
places
younger
years
child
than 15
Arellano-Ramirez,
Fed.Appx.
States v.
death,
danger
bodily injury,
imminent
(5th Cir.2003). However,
by
we are bound
impairment.”
or mental
Tex Pen.
opinion
our en banc
in Calderon-Pena and
22.041(c).
Code Ann.
therefore follow the rule we established in
that case.
(10th Cir.2012);
however,
United States v.
by
way
F.3d 670
hamstrung,
areWe
Cir.2006).
Armstead,
the “modi-
there here, could not and Resendiz-Moreno
ly felony violation guilty to pleaded sum, In the basis I have stated.
except on reality of this against the
we are blinkered he re- prior and
defendant’s unjust windfall his sentence. ceives an RODRIGUEZ, also known Esau Rodriguez, Acosta as Esau over, would advo If were to start I Petitioner, recently adopted by the position cate the by Judge Niem- en banc and Ninth Circuit sentencing to these issues. eyer regal’d Attorney HOLDER, Jr., H. Eric U.S. Aguila-Montes de States v.
See United General, Respondent. (9th Cir.2011) (en banc); Oca, No. 10-60763. Gomez, States v. United (4th Cir.2012) J., (Niemeyer, dis 203-15 Appeals, States Court United would authorize senting). position This Fifth Circuit. doc- Shepard-compliant more liberal 16, 2013. Jan. an indictment or “pare uments to down” necessarily to the facts that plea document defendant’s conviction.
undergird the sum, is, in position basis for this
The has never excluded Supreme Court goals proce- and possibility; sentencing guidelines under the
dures of interpretation from the
are different in the first in- liability criminal
federal
stance; “mini-trials” preventing and that is minimized unfairness to defendants currently circuits
by this method. Other See, approach. this more realistic
apply Ventura-Perez, 666
e.g., States v. United